Op EdsOP. ED.

“Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters.”[Shafin Jahan v. Asokan K.M.,  (2018) 16 SCC 368]


The Right to make choices come from freedom and forms an integral part of one’s dignity.

75 years of independence and we are still boarded in the train of struggle when it comes to granting liberty to the younger boys and girls who want to choose their life partners.

The country which gives us the right to choose our own leaders is still witnessing the harrowing incidents of caste and community playing a major role in deciding one’s life partner.

Fortunately, the Courts of this country as a rescuer in these situations are saving a few lives and their freedom.

Right to Marry one person’s choice


In the recent Supreme Court decision in Laxmibai Chandaragi B v. State of Karnataka, (2021) 3 SCC 360, Justice Sanjay Kishan Kaul made very pertinent observations that,

Educated younger boys and girls are choosing their life partners which, in turn is a departure from the earlier norms of society where caste and community play a major role. Possibly, this is the way forward where caste and community tensions will reduce by such inter marriage but in the meantime these youngsters face threats from the elders and the Courts have been coming to the aid of these youngsters.

Stressing upon one’s own choices, the Court added that,

“…choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice.”

The said right is an integral part of Article 21 of the Constitution of India.

“Intimacies of marriage lie within a core zone of privacy, which is inviolable and even matters of faith would have the least effect on them.”

A very pertinent remark that this Court made was,

“Under the garb of caste and community to alienate the child and the son-in-law will hardly be a desirable social exercise.” 

What is the “Honour” in “Honour Killings”?


Stating that the caste system is a curse on the nation and opining that the sooner it is destroyed the better, Supreme Court highlighted in the decision of Lata Singh v. State of U.P., (2006) 5 SCC 475 that “honour killings” of such persons who undergo inter-caste or inter-religious marriage of their own will. There is nothing honourable in such killings, and in fact, they are nothing, but barbaric and shameful acts of murder committed by brutal, feudal-minded persons who deserve harsh punishment.

The Division Bench of this Court expressed that the nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern.

“There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law.”

State’s duty to protect individual’s freedom of choice in marriage


In 2014, the Supreme Court expressed that, the State is duty-bound to protect the Fundamental Rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. [Gang-Rape Ordered by Village Kangaroo Court in W.B., In re, (2014) 4 SCC 786]

The role of Khap Panchayats in decreeing or encouraging the honour killings or other atrocities was noted in the Supreme Court decision of Arumugam Servai v. State of T.N., (2011) 6 SCC 405, wherein the Court expressed that these Panchayats encourage such atrocities in an institutionalized way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with personal lives of people.

Bench opined that the above is wholly illegal and has to be ruthlessly stamped out.

In the very famous Hadiya Case, the Supreme Court pressed upon the concept of individualistic entity observed that,

“…observed that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the concept structuralism of obeisance to the societal will destroy the individualistic entity of a person.”

“Non acceptance of her choice would simply mean creating discomfort to the constitutional right by a constitutional court which is meant to be the protector of fundamental rights.”

Justice D.Y. Chandrachud while concurring with the opinion of Chief Justice also made a significant observation that,

“The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual.”

“The absolute right of an individual to choose a life partner is not in the least affected by matters of faith.”[Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368]

In the fight to save dignity, let’s not be blinded with the fact that dignity comes with the freedom to make choices as rightly expressed by Justice D.Y. Chandrachud that, “Our choices are respected because they are ours. Social approval for intimate personal decision is not the basis for recognizing them.”

Case BriefsSupreme Court

Supreme Court: In a case where two educated consenting adults had got married to each other without the consent of their parents, the bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ held that

“… the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy.”

Background

Santosh is an M.Tech from NIT, Tiruchirapalli and is working as a Lecturer in KLES (Karnataka Lingayat Education Society) Pre-University College, Bailhongal, while Laxmi, is an M.A.B.Ed., working as an Assistant Professor in Jain College of Engineering, Belagavi, Karnataka. They developed liking for each other during these assignments. However, there was resistance from the parents of Laxmi, though the parents of Santosh were willing for the matrimony of both the well qualified petitioners who are majors and Hindu by religion.

After Laxmi had, without informing her parents, travelled from Hubli to Bangalore and thereafter to Delhi in order to get married to Santosh, her parents had filed a complaint of a missing person. Laxmi, however, sent her marriage certificate to her parents through whatsapp on 15.10.2020 in which she revealed the factum of marriage to Santosh. She also spoke to the investigating officer and informed that she had already married Santosh and was residing with him. But the IO instead insisted that she should appear before the Murgod police station to record a statement so that the case can be closed. She then sent a letter to the IO stating that she was married to Santosh and there was threat from her parents and thus, was unable to visit the police station.

Thereafter, the IO stated that they would like to close the case, but they wanted her to get her statement recorded at the police station. The IO also stated that the family members may file a case against her that she has stolen things from the home and if an FIR is filed, there would be a negative mark against Santosh and they would have to arrest him which would be problematic for his job also.

What the Court said

The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking.”

The Court said that the case was handled does not reflect very well on the police authorities or the IO, the marriage certificate having been received by him and the conversation already been held with Laxmi where she clearly stated that she was married to Santosh and that she was feeling threatened and apprehensive of coming to the police station.

If the IO could have visited the residence of Santosh, he could very well have recorded the statement of Laxmi rather than insisting and calling upon the petitioners to come to the local police station at Karnataka. Not only that, he undoubtedly sought to compel Laxmi to come and record the statement at police station on the threat of possibility of a false case being registered by her parents against her husband and the consequent action of the police which would result in the arrest of her husband.

“We strongly deprecate the conduct of the IO in adopting these tactics and the officer must be sent for counseling as to how to manage such cases.”

The Court also noticed that both the parties are well educated.

“Educated younger boys and girls are choosing their life partners which, in turn is a departure from the earlier norms of society where caste and community play a major role. Possibly, this is the way forward where caste and community tensions will reduce by such inter marriage but in the meantime these youngsters face threats from the elders and the Courts have been coming to the aid of these youngsters.”

[Laxmibai Chandaragi v. State of Karnataka, 2021 SCC OnLine SC 85, decided on 08.02.2021]


*Judgment by: Justice Sanjay Kishan Kaul 

Know Thy Judge| Justice Sanjay Kishan Kaul

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Sanjay Kumar Gupta, J. allowed a petition seeking protection, filed by a couple who performed inter-caste marriage.

The petitioners out of their free will and consent executed a marriage agreement duly attested by notary. They also married as per Hindu rites and customs at Arya Samaj Janipur, Jammu. As per the affidavit filed by them, it was evident that they were major at the time they solemnized the marriage. Father of the girl (Respondent 5) was vehemently opposed to their marriage; and he harassed and threatened to kill them. This led the petitioners to restrict their movement and being aggrieved, they filed the instant petition.

The Court relied on Shafin Jahan v. Ashokan K.M., (2018) 16 SCC 368 to hold that right to marry a person of one’s choice is an integral aspect of Article 21 of the Constitution of India. Reliance was further placed on Lata Singh v. State of U.P., (2006) 5 SCC 475, wherein the Apex Court directed that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law”.

In view of the above, this petition was allowed and official respondent’s 1 to 4 were directed to ensure adequate protection of lives and liberty of the petitioners.[Simran Choudhary v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 404, Order dated 01-05-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of H.S. Madaan, J. denied bail to the petitioner who was accused of honour killing of his sister.

The petitioner was alleged to have done away with the life of his sister. The complainant, Rohtash Kumar, in his written complaint submitted that he had married one Kiran Rani, sister of the accused; and since it was an inter-caste marriage, her family was not convinced. After the marriage was solemnised, Kiran went back to her parent’s home to complete studies. The complainant informed that on 22-1-2017, he received a call from the petitioner, brother of Kiran who threatened to kidnap him and further told him that he had killed Kiran and cremated her. Based on the complaint, an FIR was registered; the investigation was done; and the charge sheet was filed under Sections 201, 302, 328, 506 and 34 IPC. He was facing trial and approached the Court for grant of bail.

The High Court perused the record and found it a case where judicial discretion ought not to be exercised in favour of the petitioner. The Court observed, cases of honor killing are increasing day by day, which is a very unhealthy trend. This tendency needs to be curbed. Persons indulging in honor killings must be dealt with sternly to send a message around that people indulging in such type of crimes shall be held accountable for their wrongful acts. The High Court noted the apprehension expressed by the respondent that if the petitioner was released on bail, there was the likelihood of him absconding and tampering with the prosecution evidence. Observing this, the High Court denied bail to the petitioner and accordingly, the petition was dismissed. [Ashok Kumar v. State of Haryana, 2018 SCC OnLine P&H 803, dated 31-05-2018]

 

Case BriefsHigh Courts

Allahabad High Court: In a case of inter-caste marriage, the Court directed the  Senior Superintendent of Police concerned to provide necessary and immediate protection to the couple if anyone disturbs their peaceful living.

The petitioners approached the Court seeking a writ of Mandamus in order to prevent the respondents from interfering in their peaceful married life. The petitioners contended that they are adults and married each other of their own free will but they have being harassed for that.

The Court accepted the precedent set in previous cases and observed that if the persons getting married are major and are marrying of their own free will then the parents of such persons can only cut them off socially. They have no right to harass or commit violence. There is no ‘honour’ to be found in ‘honour killing’. Therefore any person involved in such acts shall be sternly prosecuted. The Court further directed the petitioners to register their marriage under the Uttar Pradesh Marriages Registration Rules, 2017 within two months from the date of this order, failing which the order would stand vacated. [Babita @ Roji v. State of U.P., 2017 SCC OnLine All 1993, decided on 05.09.2017]